Concept and significance of the Vollstreckungsgegenklage (action to oppose enforcement)
Die Action to oppose enforcement (Vollstreckungsgegenklage) is a central legal instrument of German civil procedure law. It offers the debtor the possibility, after a judgment has been rendered—such as a judgment, order for enforcement, or judgment upon acknowledgment—and during or after initiation of enforcement proceedings, to defend against such enforcement. In the context of this action, the debtor can assert objections to the claim established by the title, which arose only after the conclusion of the last oral hearing in the proceedings or which could originally only be asserted thereafter. The action to oppose enforcement is governed by § 767 of the Code of Civil Procedure (Zivilprozessordnung, ZPO).
Statutory basis
Die statutory basis for the action to oppose enforcement is found in § 767 ZPO. According to this, the debtor can, under certain conditions, use the action to challenge the substantive validity of the established claim in order to prevent its enforcement.Wording of § 767 (1) ZPO:
“The debtor may assert, by action, objections relating to the claim itself, provided that they arose only after the close of the oral proceedings upon which the judgment was based.”This clarifies that only subsequently arisen objections can be the subject of the action to oppose enforcement.
Admissibility of the action to oppose enforcement
Standing to sue and be sued
In principle, the debtor against whom enforcement is sought from an enforceable title has standing to bring the action. The party entitled to enforce (the judgment creditor), who holds the title and initiates enforcement measures, is the party to be sued.
Requirements
The following requirements must be met for an action to oppose enforcement to be admissible:
- An enforceable title must exist.
- Enforcement measures have been initiated or are imminent.
- The objections raised against the established claim arose only after the conclusion of the oral hearing in the proceedings or could only be asserted for the first time thereafter.
- Only substantive (material law) objections may be raised, not procedural objections.
Distinction from other remedies
The action to oppose enforcement must be distinguished from the Erinnerung (§ 766 ZPO), which concerns procedural errors in enforcement proceedings; from Klauselerinnerung (§ 732 ZPO) regarding the issuance of the enforceable clause;
* and from the action for issuance of a counter-enforcement clause.
The action to oppose enforcement relates solely to grounds that affect the claim established by the title itself, not to procedural issues.
Subject matter and scope of the action to oppose enforcement
Typical objections
In the context of the action to oppose enforcement, only objections that are of a substantive (material law) nature and arose after the conclusion of the proceedings are permitted. These objections include in particular:
- Fulfillment: The established claim was subsequently satisfied.
- Set-off (Aufrechnung): A counterclaim was set off after the title became final.
- Debt waiver: A subsequent waiver of the established claim was agreed.
- Postponement (Stundung): Enforcement is inadmissible due to a subsequent agreement to defer payment.
- Agreement to waive performance
- Subsequent occurrence or failure of conditions
- Forfeiture and other defenses
Objections that could already have been raised during the proceedings on the merits cannot be raised within the framework of the action to oppose enforcement.
Binding effect of the title
The legal validity of the title remains unaffected by the action to oppose enforcement. With this action, only the authorization to enforce the contents of the title is temporarily called into question.
Procedure for the action to oppose enforcement
Jurisdiction and conduct of the proceedings
The court with local and subject-matter jurisdiction to decide on an action to oppose enforcement is, in principle, the court that would have jurisdiction based on the amount in dispute. As a rule, this is the court of general civil jurisdiction at the domicile of the debtor.
The procedure is conducted as an action in accordance with the general rules of the ZPO. The parties are referred to as plaintiff (debtor) and defendant (creditor).
Content of the relief sought (claim)
The action to oppose enforcement seeks a declaration that enforcement from the specific title is inadmissible to the extent that one or more of the subsequently arisen objections apply.
Effect of the action
The filing of an action to oppose enforcement does not automatically stay enforcement. A separate application for provisional suspension of enforcement in accordance with § 769 ZPO or a court order suspending enforcement (§ 775 No. 1 ZPO) is required.
Court decision
The court seized examines whether the objections raised are substantiated and arose after the title was issued. If the court upholds the action, it declares enforcement from the title, possibly only in part, to be inadmissible.
An appeal is available against the decision if the statutory requirements are met.
Distinction from further remedies concerning enforcement
Die Action to oppose enforcement (Vollstreckungsgegenklage) is embedded in the canon of remedies in enforcement law and must be distinguished from the following types of actions and procedures:
- Third-party objection action (§ 771 ZPO): Protection for a third party who asserts that the assets seized by enforcement belong to them.
- Erinnerung against the nature of the enforcement (§ 766 ZPO): Correction of formal errors or inadmissibility in enforcement proceedings.
- Klauselerinnerung (§ 732 ZPO): Review of the legality of the enforcement clause.
- Provisional suspension of enforcement (§ 769 ZPO): Interim legal protection until a decision on the main case.
Costs of the action to oppose enforcement
The costs for an action to oppose enforcement are determined by the general rules of the Code of Civil Procedure and are based on the value of the disputed claim. If the plaintiff prevails, the defeated creditor bears the costs of the proceedings; otherwise, the costs generally remain with the debtor.
Practical significance
The action to oppose enforcement is an essential instrument for debtor protection within the scope of enforcement. It allows the defense against no longer existing or modified claims, which have been determined in already existing titles and led to enforceable claims. It is frequently used, especially in cases of fulfillment, limitation, set-off, or postponement.
References
- Musielak/Voit, Zivilprozessordnung, Commentary, § 767 ZPO
- Zöller, Zivilprozessordnung, Commentary, § 767 ZPO
- Baumbach/Lauterbach/Albers/Hartmann, Zivilprozessordnung, Commentary, § 767 ZPO
Summary: The action to oppose enforcement under § 767 ZPO is an important procedural means for the debtor to assert substantive-law objections to an already established claim, provided that these only arose after the judgment proceedings were concluded. It forms, alongside other enforcement remedies, an essential part of debtor protection and ensures subsequent fairness in enforcement proceedings.
Frequently Asked Questions
When is the right time to file an action to oppose enforcement?
An action to oppose enforcement is filed pursuant to § 767 ZPO when the debtor wishes to oppose enforcement of a final judgment or enforceable title because subsequent objections to the established claim have arisen, which came about only after the conclusion of the proceedings or were not considered by the court. The right time to bring this action is generally whenever enforcement is imminent or has already commenced and the debtor wishes to raise objections based on circumstances that occurred after the title was rendered (e.g., full or partial satisfaction, waiver, set-off, limitation after the title was issued). The prerequisite is that these objections could not already have been raised in the initial proceedings. In practice, it is advisable to bring the action promptly in order to avoid unnecessary enforcement costs, as additional costs may arise with commencement of enforcement, which must also be avoided if the action is successful.
What formal requirements must an action to oppose enforcement fulfill?
The action to oppose enforcement is a general action for performance and is therefore subject to the form requirements of the Code of Civil Procedure (§§ 253 ff. ZPO). The action must be filed with the trial court of first instance, i.e., the court that ruled in the first instance. The claim must include the usual details: identification of the parties, the competent court, the facts of the case on which the action is based, and a clear claim seeking a declaration that enforcement from the specific title is inadmissible. Furthermore, sufficient reasoning must be given as to why the objection arose only after judgment or why it could not be raised in the original proceedings. Supporting evidence must be attached. Additionally, the rules regarding advance payment of costs and court correspondence must be observed.
Against which titles can an action to oppose enforcement be brought?
The action to oppose enforcement is generally directed against all enforceable final judgments (§ 704 ZPO) and equivalent enforcement titles, such as orders, judicial settlements, or cost fixation orders. The prerequisite is that the enforcement title arises from civil law. In addition, this action is also possible against decisions based on arbitral awards, European enforcement orders, or notarial deeds, provided they are enforceable and application of the Code of Civil Procedure is permitted. The action is not admissible against provisionally enforceable titles without security, as these can only be challenged by remedies in the initial proceedings or by applications for protection against enforcement (§§ 707, 719 ZPO).
What typical objections can be raised in an action to oppose enforcement?
Objections that can be raised with an action to oppose enforcement must have arisen after the title was issued or have not been considered in the original proceedings. Typical examples include complete or partial satisfaction of the claim by payment, an agreement to waive (waiver contract), set-off with a counterclaim, statute of limitations arising after judgment, postponement (deferral), change of debtor, insolvency of the debtor, or proof that the established claim has lapsed. These facts must be capable of being stated and proven. It is not permitted to assert facts or objections that arose before or during the original proceedings and could have been brought at that time.
What is the role of provisional suspension of enforcement in the action to oppose enforcement?
Filing an action to oppose enforcement does not automatically suspend enforcement. The debtor must submit a separate application to the competent enforcement court to obtain provisional suspension of enforcement in accordance with § 769 ZPO. Provisional suspension is a special procedure at the court’s discretion. It is usually granted when the court considers the action likely to succeed, or if otherwise substantial disadvantages threaten the debtor that would be hard to remedy later. The court may require security (e.g., by deposit) in order to safeguard the creditor’s interests.
Who bears the costs of an action to oppose enforcement and how are they apportioned?
As is customary in civil proceedings, the losing party generally bears the costs of the proceedings, including court and legal fees (§ 91 ZPO). If the debtor (plaintiff) does not succeed with the action to oppose enforcement, he must bear all the costs of the proceedings. If the action succeeds and enforcement is declared inadmissible, the creditor (defendant) bears the costs. Partial cost allocation or cost splitting is possible if the court finds partial success or special circumstances.
Is an oral hearing required in the action to oppose enforcement, or may the court decide in written proceedings?
In principle, an oral hearing is the rule in German civil procedure (§ 128 ZPO). However, in individual cases, on application or with the consent of both parties, the court may also decide in written proceedings (§ 128 (2) ZPO). In particular, when the facts are undisputed or no further evidence needs to be taken, the court may decide in writing on the action to oppose enforcement. It is important, though, that the parties have the opportunity to appropriately present their case, and that all submissions and facts are fully presented.
What impact does a successful action to oppose enforcement have on enforcement actions already carried out?
If the court considers the action to oppose enforcement to be justified and declares enforcement inadmissible, the enforcement title loses its effect to that extent. Enforcement measures already carried out (e.g., payments, attachments) must be reversed to the extent the debtor is entitled to this. In practice, the debtor is granted a claim for restitution of assets obtained through enforcement. In addition, there may be claims for damages if the unlawful enforcement has caused additional harm. The exact settlement is governed by the general provisions of civil law.
